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submitted: July 16, 1979.


No. 263 Special Transfer Docket, Appeal from the Judgment of Sentence of the Luzerne County Court of Common Pleas, Criminal Division, at No. 566 of 1978.


Malcolm M. Limongelli, Wilkes-Barre, for appellant.

Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.

Wieand, Nix and Wekselman, JJ.*fn*

Author: Nix

[ 271 Pa. Super. Page 69]

Appellant Hayes was charged with third degree murder, aggravated assault, simple assault, recklessly endangering another person, carrying a firearm without a license, and possession of instruments of crime, all of which arose out of an incident in February, 1978 in which James Matthew Gregory was killed. After extensive plea bargaining, appellant pled guilty to third degree murder and the other charges were dismissed by nolle prosequi. Appellant contends that the sentence he received -- a minimum of seven

[ 271 Pa. Super. Page 70]

    years and a maximum of twenty years imprisonment -- is defective in that the sentencing judge failed to adequately set forth the reasons for the sentence imposed and that the sentence is excessive. For the reasons stated below, we affirm the judgment of sentence.

Appellant's first contention is controlled by today's decision in Commonwealth v. Bachert, 271 Pa. Super. 72, 412 A.2d 580 (1979). There we stated that in Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), the Supreme Court

     held that the trial court should place on the record its reasons for imposing the particular sentence chosen. The Court believed that absent such a statement of reasons, the record would not reveal whether the trial court had considered the legislatively mandated factors set forth in the Sentencing Code, Act of December 30, 1974, P.L. 1052, No. 345, as amended, 18 Pa.C.S.A. §§ 1301 et seq. The Riggins Court recognized that "[t]raditionally, appellate courts have left sentences undisturbed on appeal because of the view that the trial court is in a far better position to weigh the factors involved in sentencing determinations." 474 Pa. at 123, 377 A.2d at 144.

Although the reasons set forth by the trial court for the sentences imposed were devoid of explication, they still may be valid. In Commonwealth v. Wareham, 259 Pa. Super. 527, 393 A.2d 951 (1978) the Court stated:

It is better practice for the court to include in its statement of reasons for the sentence some reference to the guidelines specified in the Sentencing Code, with some explanation of how consideration of those guidelines affected the determination of sentence. Commonwealth v. Riggins, supra. Still, we should not hold a statement of reasons insufficient, and therefore require vacation and remand, when it is apparent that even though the court made no reference to the guidelines, it did consider and apply them.

259 Pa. Super. at 534, 393 A.2d at 954.

As suggested by the Wareham decision, the thrust of Riggins was to require the trial judge to provide a record

[ 271 Pa. Super. Page 71]

    with reference to the sentence or sentences imposed which would allow a meaningful appellate review. The major concern was that the record should reflect those factors which were considered by the court in the sentencing decision. An enumeration of those factors, as in the case at bar, permits the reviewing court to ascertain whether the decision was based upon appropriate considerations and also permits an evaluation as to whether the listed factors justified the sentence actually imposed. Such an enumeration circumscribes the "unlimited, unstructured and irrevocable discretion" which the Riggins Court found offensive. Commonwealth v. Riggins, supra, 474 Pa. at 123, 377 A.2d at 144. Although, as stated in Wareham, the better practice in the trial court would be to explain on the record its judgment as to how the various guidelines affected the sentencing decision, we nevertheless cannot say that Riggins has been violated where the sentencing court has merely listed those factors that it considered in reaching its determination.

Commonwealth v. Bachert, 271 Pa. Super. at 82-83, 412 A.2d at 585-586 (footnote omitted).

The Sentencing Code, at the time of the sentencing in this case, required the court to

     follow the general principle that the sentence imposed should call for the minimum amount of confinement that is consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant.

18 Pa.C.S.A. § 1321(b).

In the instant case, it is clear that the sentencing judge took into account the gravity of the offense, punishment, the need for rehabilitation, further deterrence of similar crimes, and the protection of society and the public in arriving at the sentence imposed upon appellant. Under these circumstances, the requirements of Riggins were satisfied.

[ 271 Pa. Super. Page 72]

Nor do we believe that appellant's sentence of between seven and twenty years' imprisonment was excessive. Third degree murder has been classified by the legislature as a felony of the first degree, 18 Pa.C.S.A. § 2502(c), which is punishable by imprisonment "for a term which shall be fixed by the court at not more than 20 years." 18 Pa.C.S.A. § 1103(1), or by a fine not exceeding $25,000, 18 Pa.C.S.A. § 1101(1), or both, 18 Pa.C.S.A. § 1321(a). The Sentencing Code also permits the court to consider the nature and circumstances surrounding the commission of the crime in determining whether to impose a sentence of total confinement, 18 Pa.C.S.A. § 1325. We do not believe that the sentence imposed went beyond the trial court's discretion.

*fn* Justice ROBERT N. C. NIX, Jr. of the Supreme Court of Pennsylvania, and Judge I. MARTIN WEKSELMAN of the Court of Common Pleas of Allegheny County, Pennsylvania, are sitting by designation.

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